Update on the Sixth Circuit Litigation Challenging the NSA's Terrorist Surveillance Program

Marty Lederman

This Wednesday, a panel of the U.S. Court of Appeals for the Sixth Circuit, sitting in Cincinnati, will hear oral argument in ACLU v. NSA, one of the principal cases challenging the legality of the National Security Agency's NSA's "Terrorist Surveillance Program." The panel will consist of Judges Alice Batchelder (appointed 1991), Ronald Gilman (appointed 1997) and Julia Smith Gibbons (appointed 2002). The United States will be represented by Deputy Solicitor General Greg Garre. The ACLU will be represented by Ann Beeson. Garre and Beeson are both superb attorneys and oral advocates. (Lyle Denniston has more on the procedural moves in the case -- including a dispute over the government's refusal to file certain documents with the court -- here. And see Adam Liptak here: "In ordinary civil suits, the parties’ submissions are sent to their adversaries and are available to the public in open court files. But in several cases challenging the eavesdropping, Justice Department lawyers have been submitting legal papers not by filing them in court but by placing them in a room at the department. They have filed papers, in other words, with themselves.")

[Disclosure: I am an amicus in the case, on a brief arguing that the TSP violated FISA and that the President does not have constitutional authority to ignore FISA.]

Of course, two weeks ago, the Administration announced that the President has "determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires," and that the Department of Justice will now submit its surveillance applications to the FISA Court for approval under FISA.

What does this development portend for the current case?

Let's recap where we are.

Last August, Judge Taylor found that the TSP was unlawful, and enjoined its continued implementation. In particular, the NSA was enjoined from engaging in electronic surveillance except as authorized under FISA. That decision was stayed pending the Sixth Circuit appeal.

But now, it appears that the NSA is complying with the injunction. If the Administration's account is to be believed, NSA now is conducting electronic surveillance only in accord with FISA, i.e., only after demonstrating to the satisfaction of the FISA Court that there is probable cause to believe (i) that the target of the interceptions is a foreign power or an agent of a foreign power, and (ii) that each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.

This development doesn't necessarily moot the appeal, any more than compliance with an injunction ever moots an appeal challenging that injunction. If the government were to prevail on this appeal and in other related cases, then presumably it would no longer be bound by legal orders requiring compliance with FISA. And the government's continuing legal position is that it does not have to comply with FISA; therefore it has some interest in continuing its appeal.

But the government has filed an unusual memorandum with the court of appeals, in essence arguing that the government's recent compliance with FISA eliminates the controversy between the parties.

If that were stictly true -- if the government were now committed to FISA compliance going forward -- it could simply dismiss its appeal, because the underlying injunction does not require anything more than such statutory compliance.

But the government isn't dismissing its appeal, because it does not want to be bound by the injunction -- that is, it wants to retain the option of departing from FISA again if and when the President sees fit to do so. As I wrote above, that's perfectly fine, and not out of the ordinary, even if I disagree with the merits of the government's position.

What is very odd, however, is that the government is now arguing that because of its compliance with FISA, the court of appeals should vacate the district court injunction.

According to the Department of Justice, there is "no longer any live genuine controversy to adjudicate." Well, that would be true, if the government were committed to FISA compliance going forward -- in which case the government could simply live under the injunction, and withdraw its appeal. But the government understandably wishes to preserve its future prerogatives to depart from FISA, which is why it has not withdrawn its appeal.

What, then, is the government's argument for why the injunction should be vacated? After all, parties generally do not have a right to have an injunction against them vacated simply because they begin to abide by it. Whether the "extraordinary" remedy of vacating an injunction should be granted, the Supreme Court has held, is a question principally determined by "whether the party seeking relief from the judgment below caused the mootness by voluntary action." U.S. Bancorp, 513 U.S. at 24. And here, the government inded has, by its own account, voluntarily complied with FISA, i.e., has done what plaintiffs requested and what the injunction demands. "To allow a party who steps off the statutory path to employ the secondary remedy of vacatur as a refined form of collateral attack on the judgment would--quite apart from any considerations of fairness to the parties--disturb the orderly operation of the federal judicial system." U.S. Bancorp, 513 U.S. at 27. (Indeed, even apart from compliance with an injunction, the general rule is that voluntary cessation of challenged conduct in response to a lawsuit challenging such conduct does not even moot a case, unless subsequent events make it "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, 528 U.S. at 189. There is no such assurance here, of course, that the government will not resume the disputed conduct if not judicially compelled to refrain from doing so.)

I must confess that I don't quite understand the government's argument to the contrary. It claims on page 10 of its memo that its compliance with FISA was not voluntary but was instead the result of the action of an "independent judicial body," the FISA Court. See also page 13 ("the critical event was the product of an intervening act of a corrdinate branch of government"). But of course the FISA court has simply granted FISA orders sought by the government itself, and pursuant to a request from the government for such orders. (That's the way FISA works -- the government seeks an order, and the FISA court decides whether to grant it. The FISA court does not initiate proceedings on its own.) Moreover, that is precisely the remedy plaintiffs were seeking -- to require the government to seek and obtain orders from the FISA court finding probable cause that FISA's standards are met before engaging in any electronic surveillance. I should add that the FISA court orders in question presumably are only with respect to the particular electronic surveillance requested by the government in a particular case. The government's voluntary representation that it will not engage in such surveillance in the future -- i.e., in all other cases going forward -- except in accordance with FISA is not, of course, a representation made or ordered by the FISA court. It is the Administration's own doing. The letter is signed by the Attorney General, not the FISA Court. (For the ACLU's response to the government's request for vacatur, see pages 12-16 of its recently filed brief.)

The government's memo also appears to argue (page 14) that the injunction should be vacated because the district court's opinion addressed "extraordinarily sensitive questions touching upon issues of statutory construction and constitutional law, separation of powers, and, ultimately, Presidential authority in a time of war." I don't understand why that's a reason to vacate the injunction. The district court opinion has no stare decisis effect -- even other district judges in the Eastern District of Michigan are not bound to follow it. It will either be persuasive to other courts when similar questions are litigated in the future, or it won't be. And to the extent the government wishes to create better, more binding precedent in its favor, it can seek reversal on the merits in the court of appeals.

For these reasons, this non-objective observer predicts that the court of appeals will reach the "merits," at least of the government's state-secrets privilege claim, if not also of the statutory and constitutional questions in the case.

The Maine Public Utilities Commission will probably outline today how it is going to move on the complaint about Verizon's cooperating with NSA wiretapping. Maine law gives 9 months for public hearing and to adjudicate. PUC is under considerable pressure to move ahead.

What is your opinion of what the President's voluntary cessation of the TSP portends for the parallel case of CCR v Bush in the Southern District of New York? Is mootness a greater threat to plaintiffs in that case, which Judge Lynch has not yet decided?

I must confess that I don't quite understand the government's argument to the contrary. It claims on page 10 of its memo that its compliance with FISA was not voluntary but was instead the result of the action of an "independent judicial body," the FISA Court. See also page 13 ("the critical event was the product of an intervening act of a corrdinate branch of government"). But of course the FISA court has simply granted FISA orders sought by the government itself, and pursuant to a request from the government for such orders. (That's the way FISA works -- the government seeks an order, and the FISA court decides whether to grant it. The FISA court does not initiate proceedings on its own.) Moreover, that is precisely the remedy plaintiffs were seeking -- to require the government to seek and obtain orders from the FISA court finding probable cause that FISA's standards are met before engaging in any electronic surveillance.

If they follow the lead of some of the lower courts, the 6th Circuit could decide to vacate summary judgment, apply the state secrets privilege and remand for discovery on standing consistent with the state secrets privilege. Given how fast and loose with the law Judge Taylor was in prematurely granting summary judgment, it would not surprise me at all if she orders disclosure of classified material and the government appeals this case to 6th Circuit once again.

The government is obviously attempting to short circuit this process by giving 6th Circuit an out with the mootness defense. The Government appears to be attempting to reassure the Court that the FISA court is the proper place to resolve this complaint and that the FISA court has already provided a remedy for plaintiffs.

I think the Government is well aware of the points which Professor Balkin raised in this post. The way the Government is presenting its mootness argument followed by a long list of policy arguments, I think they realize that dismissal on this ground will be a matter of discretion by this panel.

I would dearly love to see 6th Circuit reverse Judge Taylor's awful decision on the merits so it cannot be used as precedent in future suits in this area. However, courts generally seek to avoid political battles between the elected branches and may leap at this opportunity to bail.

The ACLU's argument that the "voluntary cessation" standard blunts the government's mootness claim seems persuasive. Common sense might actually be congruent with the legal technicalities here.

But I still think the biggest uncertainty remains the question of standing, which was problematical before Gonzales announced that the TSP is being stopped. (I confess that I, too, am rooting for the court to reach the merits.)

As an aside, now that the program is being discontinued, there no longer seems to be justification for the stay of the injunction pending this appeal.

http://www.ccr-ny.org/v2/legal/govt_misconduct/govtArticle.asp?ObjID=RovrtPD8Bc&Content=694On December 15, 2006, the Judicial Panel on Multidistrict Litigationordered CCR v. Bush transferred to the same court in San Franciscowhere the Electronic Frontier Foundation's case, Hepting v. AT&T, andseveral dozen other cases against private telecommunications companiesare being heard. The case is thus at least temporarily out of thehands of Judge Gerard Lynch, who held an extensive oral argument onthe matter on September 5, 2006, and before Judge Vaughn Walker, whois currently attempting to streamline the many actions against phonecompanies. ...

These cases have been transfered to Judge Vaughn Walker. For those who are interested, Judge Walker wrote a lengthy and scholarly opinion covering the standing and state secrets privilege issues in the Hepting v. AT&T case before denying the Government's motion to dismiss and the plaintiff's motion for summary judgment in order to conduct more discovery on the standing issue.

http://www.eff.org/legal/cases/att/308_order_on_mtns_to_dismiss.pdf

I suspect this opinion earned Judge Vaughn the jurisdiction over the other FISA cases and may be followed by 6th Circuit to remand the case to Judge Vaughn's court for further discovery.

Thanks. I had completely missed that development in CCR v Bush. The administration continues to play its rope-a-dope strategy, avoiding consideration of the merits. The immediate affect seems to be delay.

FWIW, Judge Gerard Lynch seemed concerned at his hearing about standing in that case. As to the merits, he clearly indicated that he was unimpressed by one of the two prongs of the government's theory (that the 2001 AUMF authorized warrantless surveillance) and pressed DOJ to defend its other argument, the Article II supremacy theory expounded only indirectly, more forthrightly.

Notably, the same consolidation order also transferred to Judge Vaughn Walker the unique case that had been pending before Judge Garr M. King in Oregon, in which plaintiffs claim they actually were surveilled and had seen proof in a document the government had accidently disclosed to them.

[From Denniston's article on Scotusblog]: "Moreover, [the gummint] added, the Circuit Court should avoid a ruling in the case on the merits, because that would involve exploration of "extremely sensitive constitutional issues" about presidential power."

In its submissions Wednesday, the Justice Department argued that, while the trial judge's order not to conduct the Program outside of the FISA Court's reach was now moot, that order should be wiped off the books because it sought to resolve "extraordinarily sensitive questions touching upon issues of statutory construction and constitutional law, separation of powers, and, ultimate, presidential authority in a time of war."

Heavne forbit they do such a thing.... At least that's what the maladminstration is hoping, and that's what JaO and Glenn Greenwald have been claiming -- correctly, it seems -- for quite some time. The maladministration doesn't want -- and in fact fears -- a decision on the merits.

If the Administration's account is to be believed, NSA now is conducting electronic surveillance only in accord with FISA

I'm not sure that's correct, even taking the administration's representations at face value.

Maybe I missed something, but I thought they stated that specifically the Terrorist Surveillance Program is now being conducted in compliance with FISA. But this falls well short of saying they are complying with FISA as a general matter. In particular, they are presumably still violating the pen register provisions of FISA with the call detail database (the story first reported by USA Today).